Could Senate's Hearing Finally Move OSHA?

OSHA has resisted a combustible dust standard, and this week a House bill to force one may be passed. Will a U.S. Senate Health, Education, Labor & Pensions Committee hearing today that was filled with searing testimony push a reform bill into law and produce a tougher OSHA? Sen. Edward Kennedy's committee heard from only five witnesses, but their testimony -- available in PDF versions online via the committee's Web site -- afforded plenty of support for a bill that would result in higher penalties and possible criminal prosecution for workplace fatalities.

"A number of us have introduced the Protecting America’s Workers Act to give OSHA the support it needs to change employers’ behavior," Kennedy said Tuesday, after releasing a report critical of OSHA's penalties in fatality cases. "It makes reasonable increases in civil penalties – especially in the most serious cases. It also creates a strong criminal penalty, including the possibility of felony charges and significant prison terms. . . . The problem of workplace fatalities isn't going away. As the economy continues its decline, the pressure on America’s workers to increase productivity is growing. Achieving higher production often mean cutting corners on safety. We all know where that leads – more accidents, more injuries, and more deaths. Even in these difficult economic times, workers deserve to have their safety put first."

The witnesses who testified Tuesday included David M. Uhlmann, director of the University of Michigan Law School's Environmental Law and Policy Program and former chief of the U.S. Justice Department's Environmental Crimes Section. Uhlmann discussed successful DOJ prosecutions in cases where workers were killed that did not utilize the OSH Act because it covers only willful violations that result in a worker's death. This makes ignorance of the law a defense, Uhlmann pointed out, and insulates from criminal prosecution mid-level managers who have day-to-day responsibility for workplace safety. He said the Protecting America’s Workers Act would be an improvement because it makes most criminal violations of the OSH Act felonies. "Absent action by Congress, criminal cases will remain infrequent because federal prosecutors will not devote significant resources to cases that Congress relegates to misdemeanor status," Uhlmann said. He suggested several changes that would improve the act, including eliminating the willfulness requirement that it shares with the current OSH Act. Federal environmental laws started at about the same time as the OSH Act, with essentially an equal penalty scheme, but Congress soon realized a tougher stance was required and then toughened environmental prosecutions -- which it has yet to do with worker safety laws, Uhlmann said.

Other witnesses included Peg Seminario, safety and health director for the AFL-CIO, who noted that OSHA's penalties have not even kept pace with inflation and maximum penalties are rarely assessed; and Ron Hayes, who began contending with OSHA in 1993 when his 19-year-old son died in a workplace accident. Hayes and his wife founded an organization, Families in Grief Hold Together, to assist families of workers who die on the job. "The number one question I have heard from every family member is why can't OSHA do its job, why can't OSHA fine the company more, why can't OSHA prosecute the company in a criminal manner, why does OSHA reduce the penalties," Hayes said. "These are all good and fair questions, and someone should give us a straight answer, but to date I have not heard one good reason for any reducations of fine for a fatality."

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